Walter Dellinger

  • April 11, 2017
    Guest Post

    *This piece is part of the ACSblog symposium: "The Future of the U.S. Constitution

    by Walter Dellinger, ACS Board of Advisors Member, Douglas B. Maggs Professor Emeritus of Law, Duke University School of Law and Dawn Johnsen, ACS Board of Advisors Member and Walter W. Foskett Professor of Law, Indiana University Maurer School of Law

    America’s increasing economic inequality threatens our liberal democracy. Economic inequality translates into political inequality and corrodes our democratic institutions and the viability of our Constitution. Ganesh Sitaraman describes these threats in his excellent new book, The Crisis of the Middle Class Constitution: Why Economic Inequality Threatens Our Republic. We need urgently to find innovative tools to counter the erosion of our foundational, shared belief in opportunity and fairness, the American Dream.

    It is time to begin a serious national debate about the wisdom and constitutionality of a federal tax on wealth – an annual tax of a small percentage of an individual taxpayer’s net worth in excess of some large minimum. Just for example:  a 1 percent annual tax on wealth in excess of 10 million dollars, which would affect less than 1 percent of Americans. We leave the details to those skilled in economic and tax policy. Nor do we have in mind the short-term political viability of such a tax in the current Congress – though we will note that in 1999 Donald Trump suggested a one-time 14.25 percent tax on net worth in excess of 10 million dollars.

  • March 21, 2014

    by Nicholas Alexiou

    The Religious Freedom Restoration Act (RFRA) should not be read to provide for-profit employers the extraordinary power to block women workers from access to the most effective contraceptive methods, states an amicus brief lodged with the Supreme Court on behalf of the Guttmacher Institute and Professor Sara Rosenbaum, an expert in law and policy surrounding healthcare concerns.

    The friend-of-the-court brief authored by Dawn Johnsen, a distinguished professor at the Indiana University Maurer School of Law (and a member of the ACS Board), and includes former U.S. Solicitor General Walter Dellinger as Counsel of Record explains that the for-profit companies – an arts-and-crafts chain store and a cabinet manufacturer – have “failed to recognize the vastly different effectiveness and cost of different forms of contraception, the substantial degree to which cost determines which contraceptive methods are actually used, the health and social factors that affect a woman’s method of choice, and the resulting consequences for women’s health, family and well-being, and risk of unintended pregnancy and abortion.”

    In the brief, Johnsen and Dellinger note that cost-sharing promoted by the Affordable Care Act is critical to allowing every woman to have access to the most effective forms of contraception available. It is claimed that hormonal intrauterine devices (IUD) are “45 times more effective than oral contraceptives and 90 times more effective than male condoms in preventing pregnancy based on typical use” and that “[a]lmost one-third of American women report that they would change their contraceptive method if cost were not an issue.” However, the cost of IUDs is an overwhelming issue for many Americans as implantation can cost “a month’s salary for a woman working full time at minimum wage.”

    To rule in favor of the corporations in these cases “would deny to female employees and their insured family members vital access to the full range of contraceptive methods, inflicting financial harm and erecting obstacles to needed medical care.”

  • January 24, 2013

    by E. Sebastian Arduengo

    Forty years after the U.S. Supreme Court invalidated on constitutional grounds a state law banning abortion, large swaths of the public may be more supportive of a woman’s right to make decisions regarding health, but state and federal lawmakers remain obsessed with limiting reproductive rights. The ongoing challenges to protect liberty of women were the focus of a recent ACS panel discussion at Georgetown University Law Center.

    The Jan. 23 panel discussion kicked off with opening remarks by ACS President Caroline Fredrickson, who talked about how Roe v. Wade sadly marked the high-water point of reproductive rights, because ever since then federal and state lawmakers have been chipping away at it. One of the first efforts to erode liberty started with passage of the 1976 Hyde Amendment, which prevents the federal government from funding abortions through Medicaid – the primary source of health insurance for millions of low income women, and continue to fall with the myriad restrictions on abortion that serve no purpose but to harass women. (See video of panel discussion here.)

    Former Acting U.S. Solicitor General Walter Dellinger followed Fredrickson, and maintained that Roe was not about choice -- it was about the right to an abortion. He also criticized the Supreme Court’s decision in Gonzales v. Carhart, noting that if the government really wanted to curb late-term abortions, it should stop obstructing abortion early in pregnancy. Dellinger was followed by Marcia Greenberger, co-president of the National Women’s Law Center, who discussed the mounting legislative attacks on abortion. In the last two years, she said, there have been 162 new abortion restrictions passed by the states. Things have gotten so onerous that in some states, like Mississippi, there’s only a single abortion provider left in the entire state. That clinic is under continuing threat, as the state is requiring doctors at the clinic to have admitting privileges at local hospitals – a burden that makes running a clinic financially impossible.

  • June 29, 2012

    by Jeremy Leaming

    Reading from the bench during the announcement of the Supreme Court’s decision on the Obama administration’s landmark health care reform law, Justice Ruth Bader Ginsburg declared, “In the end, the Affordable Care Act survives largely unscathed.”

    Yes, the Obama administration’s signature legislative achievement and the strongest effort in many decades to repair the nation’s tattered social safety did survive Supreme Court scrutiny.

    But as noted here yesterday, it did so barely, and not in the manner that many constitutional law experts and the high court’s four moderate to left-of-center justices had thought it would. And the opinion also included a shrill dissent that envisions a vastly ineffective federal government. As former U.S. Solicitor General Walter Dellinger said during yesterday’s ACS press briefing if the dissent had carried the day it would have marked and “extraordinary revolution” in constitutional law jurisprudence.

    Although the federal government argued that the law’s integral measure, the minimum coverage provision, was constitutional on two major fronts, it was largely thought that it would be upheld as a valid regulation of commerce. The activity of the health care market represents nearly 18 percent of the nation’s economy.  

    But that did not happen. And some constitutional law scholars say that fact should not be ignored.

    Chief Justice John Roberts’ majority opinion provides some language suggesting the high court was not radically re-reading precedent on the commerce clause. But a careful reading of his opinion reveals that the libertarian argument for a vastly cramped interpretation of the commerce power carried the day.

    As The New York Times’ Adam Liptak put it, “Five justices accepted the argument that had been at the heart of the challenge brought by the 26 states and other plaintiffs: that the federal government is not permitted to force individuals not engaged in commercial activities to buy services they do not want. That was a stunning victory for a theory pressed by a small band of conservatives and libertarian lawyers. Most members of the legal academy view the theory as misguided, if not frivolous.”

    Justice Ruth Bader Ginsburg in her concurring opinion also took the chief justice to task for a “rigid reading” of the commerce clause that “makes scant sense and is stunningly retrogressive.”

  • June 28, 2012

    by Jeremy Leaming

    Chief Justice John Roberts saved the nation’s top court from going over a cliff, barely. While a majority of the justices found the Affordable Care Act constitutional, they did so largely on Congress’s power to “lay and collect” taxes.

    The Court’s majority opinion, however, found that the minimum coverage provision was not a regulation of commerce. The majority opinion also held that Congress can expand Medicaid coverage, but that it “is not free” to “penalize states that choose not to participate in that new program by taking away their existing Medicaid funding."

    ACS President Caroline Fredrickson praised the decision, saying:

    The U.S. Constitution and the American people won an important victory before the nation’s high court today. The Supreme Court wisely resolved the health care case, despite all the political posturing on the right. Chief Justice Roberts’ majority opinion for the Supreme Court, upholding the Affordable Care Act’s integral ‘minimum coverage’ provision, has allowed for progress providing health care for tens of millions of Americans. It remains to be seen what the impact will be of Chief Justice Roberts’ understanding of the difference between ‘activity’ and ‘inactivity’ under the Commerce Clause.

    The Obama administration argued that the ACA’s integral provision, the minimum coverage provision, which requires some Americans to purchase health care coverage starting in 2014 or pay penalty on their income tax filings, was valid under the Constitution’s commerce clause and the constitutional power of Congress to tax and spend.